Mutual Fire Insurance v. Barker
Mutual Fire Insurance v. Barker
Opinion of the Court
delivered the opinion of the Court:
The motives actuating the managing officers of the appellant in pressing the sale of the property, as well as in the prosecution of suits, after said sale, for recovery of possession and of the balance left unpaid after crediting the proceeds thereof, have been the subject of animadversion on the argument, special emphasis being laid upon their refusal to perform the alleged contract of purchase made with the appellee for the sum of $14,000.
These, however, are matters of no practical importance in the consideration of the case disclosed by the record. Whether a substantial contract, upon valuable consideration, was made between appellant and appellee for the private sale of the property is not in issue here. If such a contract was in fact made and broken by the appellant, the appellee has a remedy either on a bill for specific performance, or in an action for damages. It appears that he filed such a bill and that it has been dismissed. In that disposition he seems to have acquiesced, as no appeal has been prosecuted the:efrom. The remedy at law is open to pursuit. In this view, he clearly will have sustained no injury by reason of the wrongful foreclosure of the deed of trust. On the other hand, if no such contract was in fact made there remains no foundation for complaint.
Whatever effect feelings of hostility on the part of the managers and officers towards the appellee may have had in stimulating them, at last, to the enforcement of the security for his unpaid loan, their action was, nevertheless, in the line of their plain duty. In view of their obligations as trustees of a fund confided to them for prudent investment and diligent safe-keeping, their only apparent dereliction in the premises would seem to consist in the failure to commence proceedings at a much earlier date.
The loan was made, as we have seen, in July, 1896; not
Nor was the state of the weather such as reasonably to require postponement. The testimony conclusively shows that the afternoon was w'hat is usually reported as “fair,” there being neither rain nor snow. It was “raw and cold,” but not to the freezing point. Those who attended the sale wore overcoats, but no one testified that the cold was excessive, or so severe as reasonably to deter persons in ordinary health from attending and remaining until the close of the sale. To set aside sales, otherwise fair and regular, because had during weather as above described, would establish a rule
The testimony does not sustain these charges. The sale had been regularly advertised for a late day in October, and, having been restrained on the bill filed by appellee, was regularly readvertised when that impediment was removed. Two adjournments were had on account of bad weather; one with the express consent, and the other without the objection, of the appellee. There is not a particle of testimony tending to establish an inference even that there was any collusion between the appellant and the trustees, or attempt to suppress competitive bidding at the sale. It is true that very few persons attended the sale, and that most of these consisted of the trustees, auctioneers and agents and friends of creditor and debtor. But this can not be attributed to the want of proper advertising, to improper conduct of trustees or beneficiary, or to special inclemency of the weather. The lack of general interest in such sales is one of the risks that the mortgagor must be presumed to take into consideration when he executes the mortgage. The mortgagee usually guards against it by leaving a reasonable margin between the loan and the estimated cash value of the security.
The sale was formally opened with this attendance and bids asked for in the usual manner. The first bid of $8,500 was made on behalf of the appellant. After an interval, a stranger to all present offered $9,000. The appellant then made a second bid of $9,500. This was cried for sometime without eliciting an advance, and the property was declared sold to the appellant. There is nothing to indicate collusion
That no other bids were offered does not prove that there were no other possible purchasers present. One of the fitnesses for the appellee, who attended the sale as his friend and closely watched the proceedings from beginning to end, testified that there was a person present, whose name was to him unknown, whom he regarded, from his remarks, as one intending to bid on the property.
When the announcement of the pending litigation was made by the appellee’s attorney, this person was asked if he intended to make an offer. His reply was: “ No; I don’t care to buy a law suit.” He was called on two or three times, but declined to bid. He may possibly, however, have been the person who made the second bid. Whether so or not, it nowhere appears that he would have offered more than the bid of $9,500 had there been no apprehension of litigation arising out of the purchase. At any rate, his abstention could only be attributed either to his unwillingness to offer more than $9,500, or to the warning given by the appellee’s attorney. If attributable to the first cause, no damage acci ued; if to the latter, the appellee has himself to blame. As shown by the prearranged warning to purchasers, his policy was to prevent a sale through the intimidation of prospective bidders. For these reasons, it hardly lies in his mouth to object now to the consummation of the sale because there were not enough actual bidders to produce fair competition.
We are aware of no rule of law that requires the attendance of a certain number of prospective bidders upon a sale, or that a fixed number of bids, exceeding one, shall be actually offered in order to make the sale regular and confer title upon the purchaser thereat.
We can reasonably conceive valid sales made upon the first and only bid offered. It might be that many expectant bidders would be present and yet none willing to raise
It would seem that on the hearing below, attention was not called to either the foregoing case or that of Anderson v. White, before cited. Had it been, the result would probably have been different. In both of those cases we undertook to define in general terms the duties of trustees in making sales under the authority of the ordinary trust deed to secure creditors, in common use in this jurisdiction, and to discriminate between the discretion imposed upon them and that intrusted to other trustees in general.
Applying those principles to the facts of this case, as they appear in the record, we find no support for the decree appealed from, which must therefore be reversed, with costs. The cause will be remanded with direction to set aside the decree vacating the sale, and dismiss the bill. Reversed.
Reference
- Full Case Name
- THE MUTUAL FIRE INSURANCE COMPANY OF THE DISTRICT OF COLUMBIA v. BARKER
- Status
- Published
- Syllabus
- Trustee’s Sales Under Deeds oe Trust ; Oerering in Parcels ; Time oe Sale ; Number oe Bidders ; Inadequacy oe Price. i. In considering whether a trustee’s sale under a deed of trust shall be vacated at the instance of the debtor where the property has been bid in by the holder of the debt secured, it is immaterial that a contract previously entered into exists, whereby the creditor agreed to purchase the property from the debtor for a price much larger than it brought at the trustee’s sale, as the debtor has his remedy either by suit for specific performance of the contract or for damages for its breach ; and whether feelings of hostility on the part of the agents of the creditor towards the debtor had anything to do with the sale being ordered, is immaterial, where the debt secured is long overdue and there is no neglect or misconduct on the part of the trustees. 2. Where real estate embraced in a deed of trust consists of a lot containing two houses each 12^ feet wide, the lot having never been subdivided and having been conveyed as a whole, the fact that in making a sale under the deed of trust the trustees sold the property as a whole without first having offered it in parcels will not justify a court of equity in setting a sale aside at the instance of the debtor, especially where he was present at the sale and neither requested or suggested a sale in parcels. 3. That the day of the sale under a deed of trust was in Christmas week, it being neither Sunday nor a legal holiday, affords no ground for impeaching the regularity and fairness of the sale, nor will such a sale be set aside upon the ground that the state of the weather called for a postponement, where it appears that while the afternoon of the sale was raw and cold, there was neither rain nor snow, and the cold was not excessive; following Anderson v. White, 2 App. D. C. 408. 4. The fact that there is but one bid at an auction sale by trustees under a deed of trust, will not invalidate the sale where it is fair and regular and the price is not grossly inadequate. 5. Where the owner of real estate covered by a deed of trust had offered to sell it to the holder of the debt secured for $14,000, and at a trustee’s sale under the deed of trust it was bid in by the creditor for $9,500, the debt secured being $10,000 -with some accrued interest, taxes and expenses, the price was held not to be grossly inadequate, especially as the debtor at the sale warned intending purchasers not to bid because of pending litigation; following Wheeler v. McBlair, 5 App. D. C. 375.